Creek v. Clark
| Citation | 46 Ill.Dec. 763,414 N.E.2d 816,91 Ill.App.3d 429 |
| Decision Date | 26 November 1980 |
| Docket Number | No. 79-484,79-484 |
| Parties | , 46 Ill.Dec. 763 Jimmy L. CREEK, Petitioner-Appellant, v. Harold R. CLARK, Circuit Judge of Madison County, Illinois; Horace Calvo, Circuit Judge of Madison County, Illinois; Thomas R. Gibbons, Associate Circuit Judge of Madison County, Illinois; and P. J. O'Neill, Associate Circuit Judge of Madison County, Illinois, Respondents-Appellees. |
| Court | United States Appellate Court of Illinois |
Donald E. Groshong, Groshong & Moorman, Ltd., East Alton, for petitioner-appellant.
Nicholas G. Byron, State's Atty., Edwardsville and Martin N. Ashley, Deputy Director, Stephen E. Norris, Staff Atty., State's Attys. Appellate Service Commission, Mount Vernon, for respondents-appellees.
Petitioner, Jimmy L. Creek, appeals the dismissal of his petition for habeas corpus by the circuit court of Madison County. Respondents, four judges of the Third Circuit, have moved that the appeal be dismissed as moot.
Creek was charged by traffic citation with driving while under the influence of intoxicating liquor (Ill.Rev.Stat.1977, ch. 951/2, par. 11-501) and improper lane usage (Ill.Rev.Stat.1977, ch. 951/2, par. 11-709) as a result of a November 19, 1978, traffic accident in which one person was killed. Creek posted $100 cash bail. Prior to the appearance date noted on those citations, Creek's counsel notified the trial court that Creek would plead not guilty and requested a jury trial. Also prior to that date an assistant state's attorney filed a motion to dismiss for the reason that "(t)he possibility of felony charges is being investigated." In response to the motion the cause was dismissed. Thereafter Creek was charged by information with reckless homicide. (Ill.Rev.Stat.1977, ch. 38, par. 9-3.) Creek's bond on this charge was set at $50,000, which he posted by personal recognizance. Later his bond was modified to $25,000 cash and $25,000 personal recognizance, and he posted the requisite $2500 cash in compliance.
On January 12, 1979, an assistant state's attorney orally moved that the cause be dismissed. The trial court's written order in response to this motion, entered and filed on January 12, 1979, reads in its entirety:
"The above entitled cause having again come on for hearing pursuant to setting and notice for preliminary hearing, on motion of assistant state's attorney Stephanie Robbins, the above entitled cause is hereby dismissed with prejudice.
Defendant's bond ordered discharged according to law.
It is so ordered."
In the lower left margin of the written order the printed legend "Approved" is set forth, beneath which appear the signatures of the assistance state's attorney who made the motion to dismiss and the attorney for the defendant.
On the same date of January 12, 1979, the record sheet of the case contains the following entry:
No transcript of the proceedings in the trial court wherein the assistant state's attorney moved for dismissal appears in the record on appeal. The parties agree the State did not move to vacate the dismissal order or set it aside and did not appeal it. On February 15, 1979, more than 30 days after the purported dismissal with prejudice, the State filled an indictment charging Creek with reckless homicide based on the same incident. Creek moved to dismiss the cause on the basis of the prior dismissal "with prejudice," but the motion was denied. Subsequently the State filed a traffic complaint charging Creek with driving while under the influence of alcoholic liquor.
Creek's motion to dismiss was argued to the trial court and denied without explanation. Creek then instituted the instant habeas corpus action in which he argued, inter alia, that the trial court was without jurisdiction of the cause because the January 12, 1979, dismissal "with prejudice" was a final termination on the merits and subsequent prosecution was barred by res judicata. The petition for a writ of habeas corpus was dismissed after a hearing on the grounds that (1) Creek was not in "custody," (2) he was not in "custody" of the judges named as respondents, and (3) Creek had not exhausted available legal remedies in direct appeal. Creek's petition for rehearing was denied. Creek appeals from that dismissal.
Subsequent to the filing of the briefs in this appeal the respondents moved for dismissal of the appeal on the ground that Creek had since been convicted as charged and that upon sentencing this appeal would become moot. The parties thereafter concurred in a supplementation of the record on appeal which showed that defendant has indeed been sentenced to the Department of Corrections for one year on his conviction of reckless homicide and for six months on his conviction of driving while intoxicated. The parties submitted supplemental briefs on the mootness issue.
In the view we have taken of this case, however, we need not determine the mootness question.
The trial court's order dismissing Creek's petition stated three reasons for that ruling. First, that Creek had not exhausted all other legal remedies prior to habeas corpus proceedings; second, that Creek was not actually in custody and that it was therefore inappropriate to seek to require respondents to "produce the body"; and third, that the respondent circuit judges were improperly named as respondents since it could not be said that respondents had actual custody of Creek's body.
We do not, however, consider the propriety of the findings of the trial court in dismissing the petition for habeas corpus. We believe Creek has misapprehended his remedy under these facts. It is obvious from an examination of the pleadings in this case and defendant's brief and supplemental brief on appeal that defendant seeks to attack in this case, as he sought in the trial court, the consequences flowing from the January 12, 1979 dismissal of the reckless homicide charge "with prejudice."
Creek's attempts to obtain release because of the bar of the previous prosecution which was dismissed "with prejudice" upon the motion of the assistant state's attorney have been persistent in both the trial court and in this court. We believe these efforts were accompanied by a meritorious claim and that justice was denied when his plea in bar was rejected. Perhaps goaded by frustration, defendant began this action in habeas corpus before trial, conviction and imposition of sentence. While the propriety of the remedy sought is, under the circumstances, open to serious question, the endeavor to present a claim of merit should not be ignored. Accordingly, when the defendant filed the petition for a writ of habeas corpus to seek release from further prosecution and incarceration upon a charge the prosecution of which was barred, the trial court should have properly treated the petition as a motion to dismiss the prosecution, vacated the conviction and discharged defendant. Pursuant to the authority of Supreme Court Rule 366(a)(5), (Ill.Rev.Stat.1979, ch. 110A, par. 366(a)(5)), this court has the power to make any order that ought to have been given and to make any further orders that the case may require. In the exercise of that power we will consider the merits of defendant's appeal as though the trial court had regarded defendant's habeas corpus petition as a motion to dismiss charges and vacate the conviction rendered on the charges, treating it as a plea in abatement and plea in bar filed pursuant to Ill.Rev.Stat.1979, ch. 38, par. 114-1(a)(2), and Ill.Rev.Stat.1979, ch. 38, par. 3-4(a)(2). We will further regard the petition as having been consolidated with the case in which defendant was prosecuted and convicted.
Having so ordered, we acknowledge that we have in a real sense fashioned a remedy for defendant. We have been guided to this conclusion by these factors: defendant was being prosecuted upon a charge which legally could not be brought; defendant had presented his plea in bar of the prosecution to the trial court, and it had been denied; although defendant had a remedy by direct appeal from conviction and sentence, he sought to use as an alternative a petition for a writ of habeas corpus in order to avoid possible incarceration from a sentence; defendant filed a post-trial motion following sentencing (although a copy is not in the record before us); defendant's remedy was probably unavailing since he was not being held in custody and the defendants (judges) to the habeas corpus action did not hold him in custody; and, finally, defendant has persisted in his claim that his prosecution is barred in this appeal of the habeas corpus action. In the absence of our invocation of the powers conferred by Supreme Court Rule 366(a)(5) defendant would unjustly suffer conviction and incarceration for a crime the prosecution of which has been barred. We think the interests of justice require the position we have taken, but at the same time we would add the caution that attorneys and parties should adhere to proscribed rules and remedies in seeking relief from convictions regarded as illegally rendered. Cf. People v. Pettus (1980), 84 Ill.App.3d 390, 39 Ill.Dec. 736, 405 N.E.2d 489.
We now address the merits of defendant's argument. The issue is, what was the effect of the dismissal "with prejudice" of the charge by information of the crime of reckless homicide? We reiterate that the dismissal was made upon the motion of the assistant state's attorney and that it obviously had the approval of the court. The record does not disclose the reason or reasons for the dismissal, with prejudice, and we may not speculate upon anything that may have prompted the action of the assistant state's attorney and the trial court.
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E.G., In Interest of
... ... Since we are authorized to enter any order which should have been entered by the trial court (Creek v. Clark (1980), 91 Ill.App.3d 429, 46 Ill.Dec. 763, 414 N.E.2d 816), we order appellant to be partially emancipated, and grant her the right to ... ...
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People v. Verstat
...impliedly confers authority to nolle pros when, in his judgment, the prosecution should not continue. (Creek v. Clark (1980), 91 Ill.App.3d 429, 435, 46 Ill.Dec. 763, 414 N.E.2d 816 rev'd on other grounds (1981), 88 Ill.2d 54, 57 Ill.Dec. 836, 429 N.E.2d 1199; People v. Byrnes (1975), 34 Il......
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People v. Creek, 56221
... ... Apparently by sheer coincidence, the appellate court opinion (Creek v. Clark (1980), 91 Ill.App.3d 429, 46 Ill.Dec. 763, 414 N.E.2d 816) was filed on the same day, November 26, upon which the Madison County circuit court denied the last of defendant's post-trial motions. This court subsequently granted leave to appeal and reversed the appellate court (Creek v. Clark ... ...
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